Using the False Claims Act to Reform Discrimination in Policing under Title VI

Feb 26, 2015

 

 

WASHINGTON – ‎

• Background on the Community Oriented Policing Services (COPS) program and use of the False Claims Act in False Certification Cases.

 

• Since 1995, the United States government has spent some $15 billion on theCommunity Oriented Policing Services (COPS) program. A part of the 1994 Violent Crime Control and Law Enforcement Act, COPS was aimed at stopping perceived police abuses and discrimination which resulted in the riots and racial tensions following the acquittal of the L.A. police officers charged with using excessive force on motorist Rodney King. 

• Congress intended to improve policing by encouraging law enforcement agencies and municipalities to build trust and cooperation within their communities, and that COPS grants be used for hiring and training new officers, deploying new crime-fighting technologies and developing innovative race-neutral strategies to integrate police officers into the community at large.

• To effectuate the goals of the COPS program, which included non-discrimination in hiring, and in the equal enforcement of laws without regard to race, color, sex or national origin, Congress appropriated billions of dollars in funding and required recipients to comply with anti-discrimination laws, including provisions of theOmnibus Crime Control and Safe Streets Act of 1968, and Title VI of the Civil Rights Act of 1964. Congress’ generous funding of the COPS program was its way to leverage COPS’ program compliance, to enhance diversity, and to build trust and respect between and among citizens of all backgrounds and law enforcement officers. 

 

• Accordingly, in order to make certain municipalities and police departments receiving COPS grants were complying with program requirements, COPS grant applicants and recipients were required to certify, in writing or via electronic submissions to the Department of Justice (“DOJ”), that the COPS funds were used (1) for the purpose intended, and (2) that their police department was in full compliance with anti-discrimination laws at the heart of the COPS program. Failure to do comply with either (1) or (2) can result in the loss of COPS funding and sanctions. 

 

• In addition, COPS grantees are put on notice that misrepresentations of compliance on COPS grant documents subject recipients to civil penalties under the federal False Claims Act, a law which was enacted in its current form in 1986.

• The 1994 Act also empowered DOJ to monitor, audit and sanction rogue police departments under certain circumstances, including if they exhibited a “pattern and practice” of excessive force and/or violating civil rights and to use this leverage to secure future compliance, by implementing, for example, a consent decree. DOJ has made some efforts to ensure compliance.  Of course, DOJ must first be made aware of COPS grantees’ non-compliance before DOJ can act.

 

• The False Claims Act (“FCA”) has been hugely successful, allowing citizens to disclose inside information of harm to government coffers, including the knowing misrepresentations made by federal grantees to obtain taxpayer funds – – inside information that the government would otherwise not readily possess.

 

• The FCA has been used to recover taxpayer funds in multiple cases involving so-called “false certifications of compliance with law.” One of the underlying premises is that Congress can attach strings to the funding of its programs.  Non-compliance that includes false certification recoveries for the government include such diverse subject areas as health care, defense and small business government contracting, as well as banking.      

 

• To understand how the FCA, with help from insiders, could be used to change policing behavior, one need only look to how it has been used successfully in the pharmaceutical industry. In the 1990s, it became apparent that drug companies were ignoring FDA and other guidelines for marketing prescription drugs – by actively promoting non-FDA approved uses (“off-label uses”). Neither regulatory enforcement nor civil actions brought by patients who suffered harm were proving effective as deterrents.  It was only when DOJ began using the FCA to bring together (1) the inside knowledge of whistleblowers, (2) the government’s investigative resources, and (3) financial leverage of disqualifying pharmaceutical companies from federal program payments, that the pharmaceutical industry took notice.

 

• Use of False Claims Act to Remedy Law Enforcement Discrimination in Brockton, Massachusetts.

• In 1995 Ken Williams, NCLEO member and highly-decorated former homicide detective with the Brockton, Massachusetts Police Department, became one of the first African-American police officers hired under the COPS program. From the outset of his hiring, training and from experiences gained at the Brockton PD, which is a recipient of COPS grants, Williams gained inside knowledge and evidence, as alleged in his lawsuit, that an unwritten pattern and practice of discrimination, fostered by a culture condoning the same, pervaded the police department.

 

• In 2012, he filed a lawsuit, under seal, pursuant to the False Claims Act, which, has now been unsealed, and is pending in federal court in Boston. S. ex rel. Ken E. Williams v. City of Brockton, et al.  That lawsuit is attached.

 

• Detective Williams alleges that for many years, the City and Police Department of Brockton applied for and received millions of dollars in COPS grants during periods when they were not in compliance with the requirements of the program, thereby having obtained federal funds under false pretenses – by falsely certifying compliance, when such was not the case. We believe that this case is the first attempt by a whistleblower to disclose to DOJ allegations brought under and to seek remedies for violation of the FCA. 

 

• Despite bringing this matter to the attention of the government, which included in-person attendance at a government meeting in Boston, submission of supporting documents and information, and provision of the names of corroborating witnesses, DOJ declined to intervene, or join in the lawsuit, a decision left to the discretion of DOJ under the FCA. Given the inside information and evidence marshaled by Williams and his attorneys, DOJ’s decision not to intervene, particularly here, is a profound disappointment.

 

III.        Conclusion.    

 

• Williams is a strong supporter of law-abiding law enforcement officers everywhere, as well as equal rights and protections under law. He acknowledges that the vast majority of the country’s law enforcement departments who receive COPS grants are compliant.  Yet as even Milwaukee County Sheriff David Clarke acknowledged in his testimony today before the Senate Judiciary Committee:

 

“Are cops perfect? No, in fact far from it, but they are the community’s finest.” 

 

Williams’ FCA lawsuit is one solution, brought by a private citizen insider, to remedy one very imperfect police department, applying the FCA.  Although his lawsuit may be the first of its kind, it should not be the last. 

 

 

• Ken Williams is represented in the federal FCA lawsuit by Thomas Poulin of theSimmer Law Group in Washington, DC. Poulin can be reached atthomas.poulin@simmerlaw.com, or 202.340.0947.

 

http://www.marylanddailyexaminer.com/using-false-claims-act-reform-abusive-ken-e-williams/